Reed v. Young

OPINION. I. BOND, J. Reference. (After stating the facts as above). — ■ We do not understand it to be now claimed that the statute permitting a trial court, upon the application of either party or of its own motion, to direct a reference in the cases specified, of any specific question of fact or the whole issues is an unconstitutional enactment, since that point has been heretofore disapproved. [Tinsley v. Kemery, 170 Mo. l. c. 317; Ice Co. v. Max Tamm, 138 Mo. 385.] But we take ^ p0gj^0n 0f appellant to be, that the statute (R. S. 1909, sec. 1996) has. been unconstitutionally applied in the case at bar, and, hence, appellant has been deprived of a jury trial of certain issues not referable under the terms of the statute. The purpose of the statute was to prescribe the conditions upon which actions at law could be sent to a referee and the extent to which he could hear, decide and make report thereof to the court. It- was not designed to regulate the conduct of suits in equity, for the trial of these was not affected by the constitutional guaranty of jury trials “as heretofore enjoyed,” since this language did not deprive circuit courts sitting in equity of any jurisdiction or method of procedure which had been enjoyed or exercised in the administration of equitable jurisdiction; and the right and power to refer issues in equitable actions was a distinct function of chancery courts. [Ely v. Coontz, 167 Mo. l. c. 376; 16 Cyc. 434.] The object of the statute was to enable the circuit judge on the trial of legal actions to refer certain issues in invitum as to one or both of the parties litigant. When a compulsory reference may be had under this statute, the court en — 613 — joys and may exercise the supervisory power of a chancellor over the findings of the referee whether the issues submitted be legal or equitable, or whether they were committed to the referee by the consent of both parties or by the order of the court without the consent of either. [Williams v. Railroad, 153 Mo. l. c. 495.] On the other hand, when there is a reference by consent of other issues than those which are the subject-matter of a compulsory reference, then the report of the referee stands as the verdict of the jury and cannot be set aside as being opposed to the weight of the evidence. This distinction in the power of review of the court over the reports of referees in the two classes of cases grows out of the fact that the purposes for which references, in invifom, may be ordered are (especially as to the “examination of a long account”) akin to the head of equitable jurisdiction (bill for an accounting) which grew out of the right to apply to that court owing to the inadequacy of the remedy at common law. [Bispham’s Equity (7 Ed.), sec. 482; Fetter on Equity, pp. 247, 248, 249, sec. 164.] The latter author referring to this' similarity, adds: “It should also be noted that now, in most of the American States, as well as in England, courts are empowered in legal, as well as in equitable, actions to direct a trial before a referee where the examination of a very long account on either side is necessary.” We think the conclusion is clear that the close analogy of the statutory provision for a compulsory reference to the jurisdiction for an accounting in equity is the reason for the different scope of review of the findings of the referees in the two cases. And, hence, it has been well decided that the trial and appellate courts have the full right to review the finding of the referee in the instances mentioned in the statutes, to-wit: (1) where a long account is to be examined; or (2) an account to be taken for the information of the court; or (3) where a question of fact collateral to the pleadings — 614 — arises, which, is exercised on appeals of equitable actions. ___: counterclaim: Matters of Tort. II. The question on which this appeal must turn is whether the demands set up in the counterclaim of defendant were of such nature as to entitle the court to compel their submission to a referee (Investment Co. v. Bank, 96 Mo. App. 125), for there was nothing in the petition which authorized the court to direct a reference, since it only alleged two‘items of indebtedness; 1st, under a contract; and, secondly, for a quantum meruit. This leaves us to determine from the allegations of the answer, including the counterclaim, whether the issues therein presented could be referred without the consent of the appellant. Each of these issues was based upon allegations of negligence and wrongdoing or fraud of the plaintiffs and was connected with the subject-matter of the action and therefore properly included in a counterclaim. [Heman v. McNamara, 77 Mo. App. l. c. 7; Hamlin v. Walker, 228 Mo. 611.] They did not arise only ex contractu but accrued from the torts and negligences claimed to have been practiced by plaintiffs. They presented the only controversies in the case, for the answer of defendant admitted in effect the employment of a member of the plaintiff firm to render supervisory and constructive services in the building of the residence of the appellant, and a lodge gate entrance; and the only defense and counterclaim made was the itemization of damages alleged to have been caused by the incompetence, negligence and wrongdoing of the respondents, for which, it was alleged, respondents were rightfully discharged. This being the nature of the triable demands under the pleadings in this case, it is evident that they necessarily originated ex delicto. The question to be solved, therefore, is whether demands of that nature, however numerous — 615 — and though separately itemized, constitute “a long account” for which the statute authorizes compulsory reference, for it is clear that there is no other language in the statute permitting such a reference upon which the order made in this case could be sustained. [E. S. 1909, sec. 1996.] It was ruled at an early date in this State that “actions for torts are not referable.” [Martin v. Hall, 26 Mo. l. c. 389.] This principle was conceded by Judge Black in the subsequent case, Ittner v. St. Louis Exposition Assn., 97 Mo. l. c. 567, where the language of the statute permitting the court to direct a reference where the trial required “the examination of a long account” was under review. In that case plaintiff brought an action for demands arising ex contractu and which contained over ninety items. The answer set up a counterclaim “for damages for alleged inferior materials and workmanship in parts of the structure.” It was held that the petition determined the character of the action; that the counterclaim for damages was but an incident and could not defeat the right of plaintiff to a reference based upon the nature of the allegations contained in his petition. On that, ground, alone, the court held that the matter was a proper one for reference under the statute, but made .this significant statement: “If the plaintiff’s account stood conceded, as to the work done and materials furnished and the price to be paid, and the defense stood alone on alleged inferiority of materials used and workmanship, another and a different case would be presented.” Plainly, there is nothing in the ruling in that case nor in the facts then in judgment which abated the force of the principle conceded in that case, “that actions sounding in tort are not embraced in this and like statutes, though it may become necessary to consider many items of damage; for it is considered that such items of damage do not constitute an account as the term is used in the statute.” [Ittner v. — 616 — St. Louis Exposition Assn., 97 Mo. l. c. 567.] In the case at bar plaintiffs’ petition did not present any issues which required “the examination of a long account;” and, hence, presented no case whatever for a reference. The contract of employment by plaintiff, alleged in his petition, was held to be admitted by the answer, both by the referee and the trial judge. This left nothing as a basis for a reference except the issues presented.by appellant’s counterclaim; and as those issues sounded in tort, they were not referable without consent. [Foster v. Railroad, 143 Mo. App. l. c. 551; 34 Cyc. 787, and cases cited; Roth Tool Co. v. Spring Co., 146 Mo. App. l. c. 32; Tunison v. Snover, 56 N. J. L. 41; Camp v. Ingersoll, 86 N. Y. 433; Andrus v. Home Ins. Co., 73 Wis. 642.] In every case in which the construction of this statute has been before this court, it has been uniformly ruled that it is an enactment in derogation of the common law, and that its application should not be extended by construction beyond the strict terms of the act. The terms “examining a long account” are used by the statute in the sense in which they are ordinarily understood, and do not imply either an account stated or a bill of particulars, but refers to a series of charges made at various times covering transactions between the parties, or to an account kept by one .party or the other, for which redress might be had in actions ex contractu. The statute did not intend that actions sounding in tort, which juries are peculiarly adapted to try (R. S. 1909, sec. 1968), should be sent to a referee against the consent of the litigants. Such was not its construction prior to the adoption of the present Constitution (Martin v. Hall, 26 Mo. l. c. 389), and to give it that construction now would violate the constitutional guaranty that the right of trial by jury should remain inviolate as heretofore enjoyed. [Constitution, art. 2, sec. 28.] Apt and seasonable objections were made to the — 617 — refusal of the court to permit appellant to have a jury-trial. For the error in so ruling, judgment is reversed and the cause remanded. * Woodson-, P. J., and Lamm and Graves, JJconcur.